Aliens Power in Constitution: Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22
Wednesday 18 June 2014 @ 11.54 a.m. | Legal Research | Immigration
In a decision handed down today (18 June 2014), the High Court of Australia has determined that the decisions made to send offshore refugees to Manus Island were supported by a head of powers in the Commonwealth Constitution.
Facts
The plaintiff, a citizen of the Islamic Republic of Iran, entered Australia's migration zone by sea at Christmas Island on 23 July 2013. His method of entry into Australia qualified him as an "unauthorised maritime arrival" (UMA) under s 5AA of the Migration Act 1958 (Cth). After arriving at Christmas Island, the plaintiff was detained by an officer of the Department of Immigration and Border Protection and subsequently removed to the detention centre on Manus Island in the Independent State of Papua New Guinea (PNG).
Challenge in Original Jurisdiction of the High Court
The plaintiff commenced proceedings in the original jurisdiction of the High Court, challenging the validity of ss 198AB and 198AD of the Migration Act 1958 (Cth) on the ground that neither provision is supported by any head of power in s 51 of the Constitution:
- Section 198AB provides that the Minister may designate that a country is a regional processing country; and
- Section 198AD provides that UMAs must be taken from Australia to a regional processing country.
Where there are two or more regional processing countries, s 198AD(5) provides that the Minister must give a written direction to take a UMA, or a class of UMAs, to the regional processing country specified in the direction. The plaintiff also challenged the validity of the Minister's decision of 9 October 2012 to designate PNG as a regional processing country under s 198AB and the Minister's decision of 29 July 2013 to give a written direction under s 198AD(5) to take UMAs to PNG or to the Republic of Nauru.
The Decision of the High Court
The High Court unanimously held that ss 198AB and 198AD are valid under the aliens power conferred by s 51(xix) of the Constitution. The provisions operate to effect the removal of UMAs from Australia and are therefore laws with respect to a class of aliens.
The court also upheld the validity of the Minister's two decisions regarding removing the plaintiff to a regional processing centre, nominated as PNG.
The High Court further awarded costs in the case against the plaintiff.
Immigration spokeswoman for the Greens, Sarah Hanson-Young, maintained the Manus Island camp was not safe for refugees:
"The High Court has ruled Manus Island as constitutional, but what remains true is that these camps of cruelty are inhumane, unsafe and untenable for refugees...Dumping refugees in unsafe conditions on Manus Island may be constitutional but it's certainly not morally acceptable and is still in breach of international law."
A decision on a separate challenge to the indefinite detention of asylum seekers at the centre will be handed down on Friday 20 June 2014.
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Sources:
High Court Case - Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22
